IN THE CASE OF:
BOARD DATE: 23 July 2013
DOCKET NUMBER: AR20120022440
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his records to show his gender as male.
2. The applicant states his records "have me down as female and a male," the wrong sex is shown on his DD Form 214 (Report of Separation from Active Duty), and another DD Form 214 is mixed up with his. He circles Item 2 (Sex) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
3. The applicant provides:
* DD Form 214
* NGB Form 22
* illegible photocopy of a document
* Congressional correspondence
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he enlisted in the Connecticut Army National Guard (CTARNG) on 27 April 1978.
3. Item 5 (Sex) of his DD Form 1966 (Scheduling and Coding Sheet for Enlistees through Armed Forces Examining and Entrance Stations), dated 27 April 1978, shows his gender as male.
4. He entered active duty for training (ADT) on 24 September 1978 and completed the required training for military occupational specialty 94B (Food Service Specialist).
5. Item 2 (Sex) of his DD Form 1584 (National Agency Check Request), dated 27 September 1978, shows his gender as "M [male]."
6. He was honorably released from ADT on 17 April 1979. Item 2 (Sex) of his DD Form 214 shows the entry "M" indicating his gender as male.
7. He was separated from the CTARNG on 15 October 1980. Item 2 (Sex) of his NGB Form 22 shows the entry "F" indicating his gender as female.
8. His DA Form 2-1 (Personnel Qualification Record Part II) last reviewed on 11 December 1982 shows he was assigned to the 158th Transportation Company, U.S. Army Reserve, effective 2 December 1982.
9. Item 54 (Sex and Code) of his DA Form 2 (Personnel Qualification Record Part I) prepared on 31 July 1983 shows his gender as male.
10. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.
11. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes policies and procedures for enlistment, reenlistment, administrative instructions, classifications, transfers and attachments, voluntary active duty, promotions, and discharges and separations of ARNG members provides for the preparation and distribution of the NGB Form 22. This form is prepared for every Soldier being discharged from the ARNG or released from the custody and control of the military except when a Soldier is accomplishing an interstate transfer or the Soldier dies.
DISCUSSION AND CONCLUSIONS:
1. When the applicant enlisted in the ARNG on 27 April 1978, he identified himself as a male and his enlistment contract listed his gender accordingly. When he entered ADT, he did so as a male. Therefore, when he was released from ADT, his DD Form 214 correctly identified him as a male. The entry in item 2 of his DD Form 214 clearly shows his gender as male.
2. If his NGB Form 22 is in error, the NGB Form 22 is a form issued by the State ARNG and is amended by the State ARNG. There is no evidence he has exhausted his administrative remedies with the State ARNG or NGB and he was denied relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X__ _ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X ______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20120022440
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ABCMR Record of Proceedings (cont) AR20120022440
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